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When ‘Lol, No’ Is Not Enough: Lawyer Explains Why Bogus Takedown Over ‘Fuck The LAPD’ Shirt Should Result In Paying Legal Fees
from the lol-nope,-plus-a-bit-more dept
You may recall last month’s hilarious story of lawyer Mike Dunford’s response to a vexatious angry demand letter from IMG, representing the LAPD Foundation, claiming that a t-shirt with the following “Fuck the LAPD” logo violated its IP rights:
The response was as simple as it was direct: Lol, no.
As we highlighted in our post, the threat letter was ridiculously vague about what “IP” the LA Police Department Foundation believed it owned. It’s not difficult to figure out why: because nothing in the image above could possibly constitute either trademarks or copyright belonging to the LAPDF. Still, we had a few paragraphs explaining how if they claimed copyright, it would be wrong and another few paragraphs on why they’d be wrong about trademark too.
It turns out that in addition to the “LOL, no” letter, Dunford also sent a more detailed response to someone higher up at IMG, the rights company that sent the original, basically asking why his client, Cola Corporation (makers of fine anti-police wear), shouldn’t seek attorneys’ fees from IMG for their vexatious takedown.
If you’re wondering why the two separate letters were sent, it’s almost certainly because the first short one was the response. This second, much longer (but still hilarious) one was to basically say “y’all fucked up so bad, that you probably need to pay us for the time you wasted.”
The letter is a rollicking good time, as posted by Cola Corporation on Bluesky:
The second letter that @questauthority.bsky.social sent to LAPD reps on my behalf. Even more savage than “LOL, no.” I’ve highlighted my fave parts. What are yours?
— Cola (@cola.baby) May 13, 2024 at 12:30 PM
I’ve extracted the letter and PDF’d it, which you can see embedded below.
It’s a hoot, and shows that Dunford is good for more than simply “lol, no” responses.
I write to give you and the thin-skinned bullies you represent an opportunity to provide whatever reason you can think of why my client should not seek to recover attorneys’ fees in this matter under 17 U.S.C. § 512(f) — and, really, to ask you to explain why any of you ever thought any of this was in any way a good idea.
Tell us how you really feel, Mike.
As you know, and I know, and every competent intellectual property lawyer knows, the ‘C’ in DMCA stands for “Copyright.” Unsurprisingly, a valid DM CA takedown therefore requires a valid, good-faith claim of copyright infringement. But you obviously do not have any such claim — or anything that is in the same time zone as such a claim. Neither the LAPDF nor the Los Angeles Police Department itself owns a copyright to the acronym “LAPD.” Nobody does, and nobody can. It is black letter law that individual words and short phrases are not subject to copyright protection. We both know that. Students in Intro to IP classes know that. But as a professional courtesy and on the off chance you somehow forgot, the footnote call at the end of this sentence is a relevant string cite.
I’m going to just post an image of the two footnotes on this page, because, for some reason, the OCR isn’t working great on the PDF copy I made, so I’m retyping all the quotes in this article, and there’s no way I’m retyping all these citations. But, yeah, you get the idea:
If you cannot see it, it’s a long string of recent cases that all highlight the point stated above, and then noting (“wow, that’s a lot of cases saying the same thing from just the last six months, right?). For the sake of brevity, we’re not providing you with a citation from every federal district court to prove the point. We’re pretty sure we could.”
Now, I wasn’t entirely sure that DMCA 512(f) would apply, because looking over the original letter that was sent to Cola Corporation that we posted with the original article, it does not directly purport to be a DMCA takedown. I recognize that “DMCA” has become shorthand for any sort of request for a takedown or any kind of copyright claim, but to be a true DMCA 512 notice for the purpose of demanding a takedown it requires some specific things.
However, as Dunford’s more verbose letter indicates, the guy who sent it, a lawyer named Andrew Schmidt, gave the document the title: “DMCA Takedown Notice – LAPD – The Cola Corporation.” And then emailed it with the subject line “DMCA Takedown notice.” It may be fine (well, not fine, but understandable) for a lay person to use the shorthand of calling something a DMCA notice. But, not a lawyer.
It seems clear that Schmidt was either lazy… or (more likely) was hoping that because “DMCA takedowns” are so widely known as a concept, that simply calling his document as such would lead an unsophisticated individual at Cola Corporation to get scared and fold.
Dunford further makes it clear that the format of the letter “mirrors the requirements” of an official DMCA takedown notice, to effectively argue that even if it wasn’t officially a “DMCA takedown notice,” it was substantially close enough that Cola Corporation might actually have a legitimate 512(f) claim.
Now, if you’ve followed Techdirt for any length of time, you probably know that DMCA 512(f) claims for filing a misleading DMCA takedown claim are nearly impossible to win for a variety of (mostly stupid) reasons. But, damn, if this weren’t a case where it’s pretty clear that, not only was IMG misrepresenting stuff, but that they knew full well they were misrepresenting stuff. And that means that it’s a situation where a 512(f) claim might actually be legit.
17 U.S.C § 512(f) provides a cause of action to those who are harmed by a knowing material misrepresentation that material was infringing. The representation that “Fuck the LAPD” infringes on the LAPD’s copyrights is clearly false. As noted above, your client owns no copyright relevant to the alleged infringement, because the phrase “LAPD” is not remotely subject to copyright protection. As it is literally impossible to infringe on a copyright that cannot exist, the “DMCA takedown” misrepresented both the ownership and infringement of the copyright. And it did so materially — it affected my client’s response to the purported takedown by leading it to pay me to deal with your blatant bullying.
And, yes, the one area where 512(f) claims most often fall down was whether or not the sender really “knew” it was misrepresenting things. In the Lenz case, famously, the court said as long as the sender subjectively believed the notice was legit, that’s all that’s necessary. But here…
Your company does this type of work professionally. Schmidt is an attorney, senior counsel to your company. Either he knew that there was no conceivable copyright claim here, much less a good faith one, or he is staggeringly incompetent. I would honestly prefer not to believe that IMG knowingly sent a false DMCA takedown to aid and abet a police organization in bullying my client — who was, at the time you sent the document containing the knowing misrepresentations, an unrepresented party — for exercising its First Amendment rights. Yet I simply cannot believe IMG hires attorneys so terrible at their job that IMG was unaware that its client did not have a copyright claim when it sent a DMCA takedown based, in part, on allegations of copyright infringement.
Ouch.
And while the DMCA 512(f) claim is specific to the copyright arguments (the C part, remember), the letter also makes it clear that IMG can’t get away with claiming there was at least good faith in the trademark part. Because there clearly is not.
I could explain why such a claim would fail by methodically working through the eight Sleekcraft factors, but, really, all that would do is waste all of our time. Let’s not pretend: it is inconceivable that a reasonable person, no matter how unobservant or hurried, would be confused into thinking that the Los Angeles Police Department or the Los Angeles Police Department Foundation are the source of “Fuck the LAPD” merchandise.
There’s a fun footnote 7 wedged in that paragraph for law nerds, but I’ll leave that for you to check out on your own.
The next part is just good old-fashioned fun:
That only becomes more obvious when the First Amendment implications of this deplorable incident are examined. The LAPD is to state the obvious a police department. They are an arm of the state. Criticism of the state is protected speech even when it is profane and disrespectful; “speech cannot be restricted simply because it is upsetting or arouses contempt.” Snyder v. Phelps, 562 U.S. 443, 458 (2011). That, too, is black-letter law, taught in every law school. The First Amendment acts to ensure that “individual expressions of ideas remain free from governmentally imposed sanctions,” Hustler Mag., Inc. v. Falwell, 485 U.S. 46 (1988), it does so when that speech is critical of the government, and it even does so when that speech insults those in power. That’s not just basic law. It’s part of what makes America America.
I’m sure your response to that is going to be something along the lines of “but we don’t actually represent the LAPD, we’re acting on behalf of the LAPD Foundation, which really is different from the LAPD and just wants to protect its economic interests in selling licensed stuff that says “LAPD” on it. But we all know that’s not what this was about. There’s no likelihood of confusion, no infringement of copyright, no conceivable reason to think that people who like the LAPD will stop buying LAPD stuff if they can instead buy a shirt that says “Fuck the LAPD”. This isn’t about the IP. It’s about the LAPD and the LAPD Foundation being thin-skinned bullies who resent the existence of “Fuck the LAPD” merchandise.
Too damn bad.
The LAPD is not expected to like the existence of “Fuck the LAPD” merchandise. But their sole remedy is to not do things that result in people wanting to buy and wear “Fuck the LAPD” merchandise. I understand that would be a difficult task. But I promise you that it would still be easier than trying to get a court to rule that “Fuck the LAPD” shirts violate the LAPDF’s intellectual property rights.
To be honest, when we wrote our original post on Techdirt about all this, I had wanted to dig in deeper on all of these issues but felt like maybe I was going too hard in response to an issue that really only required “lol, no.”
But I do appreciate that Dunford also was willing to go deep and point out the obvious absurdities here. I eagerly await finding out if IMG ever replied…
Filed Under: 1st amendment, 512f, copyright, fuck the lapd, lapd, mike dunford, misrepresentation, trademark
Companies: cola corporation, img, lapf
‘Lol, No’ Is The Perfect Response To LAPD’s Nonsense ‘IP’ Threat Letter Over ‘Fuck The LAPD’ Shirt
from the fuck-the-lapd dept
We’ve had plenty of posts discussing all manner of behavior from the Los Angeles Police Dept. and/or the LAPD union here at Techdirt. As you might imagine if you’re a regular reader here, the majority of those posts haven’t exactly involved fawning praise for these supposed crimefighters. In fact, if you went on a reading blitz of those posts, you might even come away thinking, “You know what? Fuck the LAPD!”
Well, if you wanted to display your sentiments while you went about your day, you might go over to the Cola Corporation’s website to buy one particular shirt it had on offer there before they completely sold out.
Now, it’s not uncommon for misguided entities to issue intellectual property threat letters over t-shirts and apparel, even when it is of the sort that is obviously fair use. Given that, you might have thought it would be the Los Angeles Lakers that sent a nastygram to Cola Corp. After all, the logo in question is clearly a parody of the LA Lakers logo.
Nope!
It was the Los Angeles Police Foundation via its IMG representatives. The LAPF is something of a shadow financier of the LAPD for equipment, including all manner of tech and gear. We have no idea how an entertainment agency like IMG got in bed with these assbags, but it was IMG sending the threat letter you can see below, chock full of all kinds of claims to rights that the LAPF absolutely does not and could not have.
If you can’t see that, it’s a letter sent by Andrew Schmidt, who represents himself as the Senior Counsel to IMG Worldwide, saying:
RE: Request to Remove Infringing Material From www.thecolacorporation.com Dear Sir/Madam:
I am writing on behalf of IMG Worldwide, LLC (“IMG”), IMG is the authorized representative of Los Angeles Police Foundation CLAPF) LAPF is one of two exclusive holders of intellectual property rights pertaining to trademarks, copyrights and other licensed indicia for (a) the Los Angeles Police Department Badge; (b) the Los Angeles Police Department Uniform; (c) the LAPD motto “To Protect and Serve”; and (d) the word “LAPD” as an acronym/abbreviation for the Los Angeles Police Department (collectively, the “LAPD IP”). Through extensive advertising, promotion and the substantial sale of a full range of licensed products embodying and pertaining to the LAPD IP, the LAPD IP has become famous throughout the world; and as such, carries immeasurable value to LAPF.
We are writing to you regarding an unauthorized use of the LAPD IP on products being sold on your website, www.thecolacorporation.com (the “Infringing Product”). The website URL and description for the Infringing Product is as follows: https://www.thecolacorporation.com/products fack-the- lupd pos-1&sid=435934961&&variant=48461787234611 FUCK THE LAPD For the avoidance of doubt, the aforementioned Infringing Product and the image associated therewith are in no way authorized or approved by LAPF or any of its duly authorized representatives.
This letter hereby serves as a statement that:
- The aforementioned Infringing Product and the image associated therewith violate LAPF’s rights in the LAPD IP
- These exclusive rights in and to the LAPD IP are being violated by the sale of the Infringing Product on your website at the URL mentioned above;
- [Contact info omitted]
- On information and belief, the use of the LAPD IP on the Infringing Products is not authorized by LAPF, LAPF’s authorized agents or representatives or the law.
- Under penalty of perjury, I hereby state that the above information is accurate and I am duly authorized to act on on behalf of the rights holder of the intellectual. property at issue I hereby request that you remove or disable access the above-mentioned materials and their corresponding URL’s as they appear on your services in as expedient a manner as possible.
So, where to begin? For starters, note how the letter breezily asserts copyright, trademark, and “other licensed indicia” without ever going into detail as to what it thinks it actually holds the rights to? That’s an “indicia” of a legal threat that is bloviating, with nothing to back it up. If you know what rights you have, you clearly state them. This letter does not.
If it’s a copyright play that the LAPF is trying to make, it’s going to go absolutely nowhere. The use is made for the purposes of parody and political commentary. It’s clearly fair use, and there are plenty of precedents to back that up. Second, what exactly is the copyright claim here? It’s not the logo. Again, if anything, that would be the Lakers’ claim to make. The only thing possibly related to the LAPD would be those letters: LAPD. And, no, the LAPD does not get to copyright the letters LAPD.
If it’s a trademark play instead, well, that might actually work even less for the LAPF, for any number of reasons. Again, this is parody and political commentary: both First Amendment rights that trump trademarks. More importantly, in trademark you have the question of the likelihood of confusion. We’re fairly sure the LAPF doesn’t want to make the case that the public would be confused into thinking that the Los Angeles Police Foundation was an organization that is putting out a “Fuck the LAPD” t-shirt. Finally, for there to be a trademark, there has to be a use in commerce. Is the LAPF selling “Fuck the LAPD” t-shirts? Doubtful.
But that’s all sort of besides the point, because the LAPF doesn’t have the rights IMG asserted in its letter. Again, the only possible claim that the LAPF can make here is that it has ownership to the letters LAPD. And it does not. Beyond the fact that it had no “creative” input into LAPD, the LAPD is a city’s law enforcement agency and you cannot copyright or trademark such a thing. And, as we’ve discussed multiple times in the past, government agencies don’t get to claim IP on their agency names. The only restrictions they can present are on deceptive uses of logos/seals/etc.
But that is clearly not the case here. And we already have some examples from a decade ago of government agencies demanding the removal of parody logos and… it not ending very well for the government.
So, what is actually happening here is that the LAPF/LAPD (via IMG) is pretending it has the right to screw with private citizens in ways it absolutely does not, and is using those false rights to harass those private persons with threatening behavior to intimidate them into doing what the LAPF wants. Which, if I’m being totally honest here, is certainly on brand as roughly the most police-y thing it could do in response to a simple t-shirt that is no longer even for sale.
Now, you might imagine that the Cola Corporation’s own legal team would reply to the silly threat letter outlining all of the above, crafting a careful and articulate narrative responding to all the points raised by the LAPF, and ensuring that their full legal skills were on display.
Instead, the company brought on former Techdirt podcast guest, lawyer Mike Dunford, who crafted something that is ultimately even better.
If you can’t read that, you’re not missing much. It says:
Andrew,
Lol, no.
_Sincerel_y,
Mike Dunford
Perfect. No notes. May it go down in history alongside Arkell v. Pressdam, or the infamous Cleveland Browns response to a fan complaining about paper airplanes, as the perfect way to respond to absolutely ridiculous legal threat letters.
For what it’s worth, Dunford’s boss, Akiva Cohen, noted that this letter was “a fun one to edit.” We can only imagine.
This was a fun one to edit
— AkivaMCohen (@akivamcohen.bsky.social) Apr 18, 2024 at 2:47 PM
Filed Under: copyright, intellectual property, lapd, lol, lol no, mike dunford, police, threats, trademark
Companies: cola corporation, img, la lakers, lapf
Can The University Of Kentucky Ban Student Newspaper From Being Distributed At Its Stadium?
from the hello-first-amendment dept
College sports have become a big business. That’s no secret. We see it all the time, and at times that’s used to stifle elements of free speech, such as in making fan-created t-shirts and such illegal. Now it’s going even further. Romenesko points us to the news that the University of Kentucky, a state-funded university, has banned the distribution of a free student newspaper at the University’s Commonwealth Stadium before football games. Apparently, UK has a marketing contract with sports licensing giant IMG, which they believe gives IMG a monopoly on any media efforts around the stadium. Of course, plenty of folks are pointing out that this is a pretty clear First Amendment problem. It’s a public government-owned entity, forbidding the distribution of speech. The contract with IMG is meaningless as you can’t contract away others’ free speech rights. It sounds like folks are gearing up for a legal challenge here, which should be worth following.
Filed Under: contracts, free speech, journalism, university of kentucky
Companies: img